The lives of children are affected by various pieces of legislation and international conventions such as:

• The Age of Majority Act (Act No.57 of 1972)
• The Child Care Act (Act No.74 of 1983)
• Children's Status Act, (Act No.82 of 1987)
• Guardianship Act (Act No.192 of 1993)
• Hague Convention on the Civil Aspects of International Child Abduction Act (Act No.72 of 1996)
• Natural Fathers of Children born out of Wedlock Act (Act No.86 of 1997)

• Existing legislation was found to be not in keeping with the realities of current social problems and no longer protects children adequately.
• SA has acceded to various international conventions, the principles of which has to be incorporated into local legislation.

• During 1997 the then Minister for Welfare requested the South African Law Reform Commission to develop new comprehensive legislation for children.
• After an extensive process of research and consultation, the Law Reform Commission finalised its report and proposed draft Children's Bill in December 2002.

General Background and Overview

• This process was taken further by DSD, who in conjunction with national DOJ, DOE, DOH, SAPS, DOL, ORC, National Treasury, Provinces, National NGOs and Service Providers aligned the Bill to national policy directives and priorities.
• This together with an scoping exercise of the Bill which identified the costing elements which may have intergovernmental fiscal and budgetary implications and litigation risks led to the subsequent changes of the Bill.

Process

• Bill approved by Cabinet in July 2003 with further changes aligning it to the Constitutional mandates and realistic resources.
• Bill published for comment and submitted for certification, translation by Legal Services Directorate
• Bill submitted to Parliament in August 2003, returned to DSD with request for splitting it into Sections 75 and 76 Bills then resubmitted, returned again in Jan 2004, resubmitted and finally sent to Soc Dev PC for further deliberations
• 75 deals with national competencies and 76 with provincial direct service delivery responsibilities

VIRGINITY TESTING

• This practice is seen as a means of restoring traditional values, preventing early pregnancies and the spread of HIV. Virginity testing traditionally involved an individualized examination by a close female relative, who was responsible for providing education regarding sexuality and related matters. The condition of the hymen does not reliably indicate sexual virginity. Testing creates the basis for stigmatization of girls who do not pass, many of whom are likely to be sexual abuse victims. Further, this practice negates preventive messages about the right to body privacy, it can spread infections and given the myth that sex with a virgin cures AIDS - it is likely to lead to girls being targeted for abuse.
• Section 28 of the Constitution states clearly that the best interest of every child should be of paramount importance in every matter concerning the child. This therefore includes the child's right and respect to bodily integrity, which includes issues around virginity testing and health care.
• The Constitution also states that everyone has the right to privacy. Virginity testing as a practice, infringes these rights in the following respects:

• Virginity testing of children without their informed consent is an invasion of bodily and physical integrity and an invasion of privacy. The question however remains if children can give informed consent, under the guise of culture. The reality of issues such as coercion, parental compulsion, duress, as well as social pressures needs to be acknowledged.
• Disclosing the girl child's virginity status to someone else, without their consent is also an invasion of privacy.

• Virginity testing clearly discriminates on the grounds of gender and impairs on the dignity and
  well being of the girl child. If the virgins are identified and awarded it creates the fear of isolation and stigmatization of the young girls who were not awarded.
• Consultations on this issue indicated that it is not the same for the boy child as it is for the girl child. Due to the fact that virginity testing is mostly practiced on girl children clearly discriminates and undermines girl children.

The practice of virginity testing has become the latest trend, and has increased in recent years. This is seen in some societies as a method of combating the HIVIAIDS pandemic. Virginity testing is done to determine if the girls' hymen is in tact. The hymen is the thin skin that stretches across part of the virginal opening, which has an opening that allows the menstrual flow to pass out from the body. It is common knowledge, and has been provide that not all girls are born with hymen, that the hymen can be stretched open by the use of tampons, and that it can also be ruptured as a result of exercise, as well as physical and sporting activities.

It is difficult to say if virginity testing could still be regarded as part of culture. Upon close examination the revival of this practice was a reaction to social ills, of which
HIV/AIDS was paramount. If a practice was revived, the claims were usually made that it was for cultural purposes. The idea that virginity testing was cultural, had to be challenged for a number of reasons. This practice contravenes the Bill of Rights, as it was biased against girl children. More girls than boys are subjected to virginity testing, even though the results are inconclusive and unreliable as other events besides penetration could tear a girl's hymen. The revival of discriminatory practices in the name of culture undermines the Constitutional Bill of Rights.

Virginity testing affects women and the girl children. The marking of these women, make this vulnerable group even more vulnerable, as they are now exposed to a greater risk of rape and other forms of abuse. Virgins have also become a commodity in the trade of child trafficking. The revival of old-style local practices to address a modern global pandemic such as HIV/AIDS will do more harm than good, as long as marked gender inequalities, sexual violence and hegemonic, masculine sexualities are left unchallenged.

Sexual offences are highly gendered and they are a cause of disempowerment and the practice of virginity testing will in all likelihood further victimize the girl child victims of sexual offences, who are themselves already suffering from the consequences inequality. Dealing effectively with them and their consequences is important for achieving gender equality. The primary victims of sexual offences are women. Virginity testing exposes victims of sexual crimes and on the other hand, the marking of virgins does not afford protection to girl children against sexual crimes. Victims of sexual offences are known to suffer abandonment, rejection and violence on disclosing their identity.

The reintroduced Section 75 Bill provides for the following:
Harmful social and cultural practices

12(1) Every child has the right not to be subjected to harmful social and cultural practices that affect the wellbeing, health or dignity of the child.

(2) Every child-
(a) below the minimum age set by law for a valid marriage has the right not to be given out in
marriage or engagement; and
(h) above that minimum age has the right not to be given out in marriage or engagement without his or her consent.

(3) female genital mutilation or the circumcision of female children as a cultural practice is prohibited.

(4) Taking into consideration the child's age, maturity and stage of development, every male child has the right -

(a) to refuse circumcision; and
(h) not to be subjected to unhygienic circumcision.

(5) Every child has the right -
(a) to refuse to be subjected to virginity testing, including virginity testing as part of a cultural
practice; and
(b) not to be subjected to unhygienic virginity testing.


While the clause provides that a child may refuse to undergo a virginity test, the Bill does not require the child's consent be tested.

No penalties are stipulated for non-compliance with unhygienic virginity testing.

The Bill does not provide for confidentiality in respect of the results of a virginity test.

The following questions were raised by the Portfolio Committee:

The first focused on whether there was a shared definition of what "harmful cultural practices" means, and whether the issue is that the Bill should protect children against practices that are harmful in a medical sense, in which case the formulation of the clause was perhaps inappropriate.

The Committee should therefore also consider whether the Bill should address possible discrimination should a girl refuse to be tested, or should the test reveal that she was no longer a virgin.

Members of the Committee proposed that the entire clause be redrafted to remove the negative associations of "harmful cultural practices", and to ensure that there is clarity about what the Bill intends protecting children from.


The Clause was redrafted as followed:
Social cultural and religions practices

12 (1) Every child has the right not to he subjected to social, cultural and religions practices, which are detrimental to his or her well-being.

(2) Every child -

(a) below the minimum age set by law for a valid marriage has the right not to be given out in marriage or engagement; and
(b) above that minimum age has the right not to be given out in marriage or engagement without his or her content.

(3) Genital mutilation or the circumcision of female children is prohibited.

(4) Virginity testing of children in prohibited.

(5) Taking into consideration the child's age, maturity and stage of development, every male child has the right to refuse circumcision.

(6) (a) A person who contravenes subsection (3) and (4) or who permits such contravention in respect of a child whom her or she is obliged to protect against maltreatment, abase or degradation is guilty of an offence.

(b) A person who circumcises a male child against his will or 0 person who is obliged to protect a male child against maltreatment, abase or degradation and who allows that child to be circumcised against his will is guilty of an offence.

1. CIRCUMCISION

Recently according to media reports there appears to be an upsurge in the number of boys and young men who suffer severe infection after circumcision. They had to undergo drastic and traumatic surgery or die, due to procedures being carried out ineptly or with unsterile instruments.

The Islamic medical Association of South Africa commented on the following:

Advantages of Circumcision
Complications of circumcision
Our concern as Practitioners
Our concern as Muslims

ACCESS TO MEDICAL TREATMENT
Introduction

In order to promote and fulfill the right to basic health care services as set out in Section 28 of the Constitution, the national Department of Health is providing free health care services to children under the age of six years old. At provincial level, the Department of Health has introduced
various measures to promote and fulfill the right of children to basic health care services. Same province is serving children in rural areas and informal settlements by way of mobile and container clinics. Homeless children are referred to places of safety where primary health care services are rendered.

Access to contraceptives
In order for young persons to make informed choices regarding the age of initiating sexual
activity and protecting themselves against unwanted pregnancies and sexually transmitted diseases, they need access to appropriate family planning services. This raises a number of issues relating to the age at which they may utilize such services and the family and parental involvement in this process.

Access to termination of pregnancy services
In South Africa the "law against abortion" has been radically altered by the Choice on Termination of Pregnancy Act 92 of 1996. Under this Act the focus of the law has shifted away from abortion", with its connotation of criminality, to a woman's right of choice with respect to reproduction including the right to choose to terminate a pregnancy in the early part of the gestation period. Prior to this development in our law, South African common law permitted lawful abortion only in the care of necessity, the only clear instance of which was to save the mother's life. Some measure of reform was introduced by way of the Abortion and Sterilisation Act 2 of 1975.